CORONAVIRUS LAW: COVID NOT A GOOD REASON TO CHANGE NORMAL RULE AS TO COSTS FOLLOWING DISCONTINUANCE

In Khan v Governor of HMP The Mount & Anor [2020] EWHC 1367  Mr Justice Spencer considered, and rejected, an argument that a different costs order should be made because of the impact of coronavirus.

 

THE CASE

The claimant issued judicial review proceedings in relation to his medical treatment whilst in prison.  The defendant’s defence asserted that the case was wholly without merit. An application by the claimant to vacate a hearing was refused, the claimant discontinued the claim shortly thereafter.

THE ISSUE: SHOULD THE CLAIMANT PAY THE COSTS?

The judge was considering the issue of who should pay the costs.  Normally it is the discontinuing claimant that pays the costs. The claimant sought a different order.
  1. On 29 April, the claimant’s submissions on costs were duly served. I shall return to them in detail, but in short it was contended that there was a material change of circumstances arising from the Covid-19 crisis which justified departure from the normal rule that a claimant who discontinues is liable for the costs of the defendant incurred on or before the date of discontinuance. The submissions referred to a considerable volume of correspondence…
  1. In her written submissions (29 April) Ms Weston QC contends that the normal rule should not apply in this case because there has been a material change of circumstances sufficient to displace the presumption that a claimant who discontinues must pay the defendant’s costs of the claim in accordance with CPR r. 38.6(1).
  2. The change of circumstances she relies upon is the impact of the Covid-19 pandemic on the conduct of the claim, and the alternative opportunity for the same practical relief it provided through changes in the Prison Rules, which (it is said) made the claim itself academic. In her written submissions Ms Weston sets out the history of the correspondence between the parties, hence the detail in which I have recited that history. She submits that it was reasonable for the claimant to issue the claim because there had been no adequate response to the pre-action correspondence; the claimant’s position was vindicated by the grant of permission.
  3. Thereafter, Ms Weston submits, the Covid-19 pandemic and its consequences for prison management affected the conduct of the claim in a number of ways. For example, communication between the claimant’s solicitors and the claimant himself became difficult. In particular it was difficult for the claimant’s solicitors to obtain accurate information in relation to the claimant’s current medical condition, or to have him examined again by his consultant haematologist. On this issue she refers in her later written submissions (30 April), at paragraph 5, to the continuing concern that the claimant remains on a reduced dosage of oral medication because of side-effects. She submits that the priority shifted to securing the claimant’s release on compassionate grounds or on temporary licence (ROTL). The defendants’ insistence that the claimant was being properly and effectively “shielded” from infection was shown to be wrong and became a key issue.
  4. Ms Weston submits that the claim for judicial review had become “academic” as inter-prison transfers were no longer permitted owing to the pandemic. She submits that the unprecedented impact of the pandemic amounts to a change of circumstances which seriously hampered preparation of the claim for judicial review. She accepts that the court should have been placed on notice of this difficulty earlier, but the defendants were well aware of it and were not prejudiced.
  5. Ms Weston submits that the application to vacate was made “because at that time it appeared that the grant of permission in the case was an important procedural advantage for the client, should, after the crisis, the defendants continue to ignore the request from the claimant to deviate from standard re-categorisation review practice and consider transfer for medical reasons relating to his disability. It was wholly appropriate in light of the court’s conclusion on the application [to vacate], to re-evaluate the benefit to the claimant of proceeding…”.
  6. On behalf of the defendants, in his written submissions (30 April) Mr Fortt contends that the default position on costs on discontinuance should apply. He contends that the claimant’s submissions on costs continue to duck the central issue, namely why it was that the claimant persisted in applying to vacate the hearing thereby representing to the court that there remained a serious issue to be tried in that claim. Mr Fortt points out that the defendants’ position throughout has been that the claim for judicial review was misconceived in that no evidence has ever been produced to show that the claimant required a PICC line whilst at HMP The Mount.
  7. Mr Fortt submits that the claimant’s solicitors’ shifting focus on the proposed amendment of the claim to embrace issues arising from the impact of the Covid-19 pandemic (see paragraphs 38-49 above) was misconceived in that those were quite distinct issues; any challenge would have required the issue of a new claim. Mr Fortt repeats the concern expressed in his submissions in relation to setting aside the notice of discontinuance, that the claimant’s solicitors were holding open the possibility of pursuing the claim in the future once the Covid-19 crisis is over and restrictions lifted: see their letter of 22 April (quoted at paragraph 45 above).
  8. Mr Fortt submits that in applying to vacate the hearing on 30 April the claimant was in effect seeking to defer a ruling on the transfer issue, and that the refusal of the application to vacate demonstrated that the claimant was not entitled to such a deferment.

THE JUDGMENT: NO CHANGE FROM THE NORMAL RULE

The judge held that the impact of Covid did not justify a departure from the normal rule.  Covid had no real impact on this case which was bound to lose had the application continued.

  1. Having considered all the parties’ submissions in the light of the relevant principles I am satisfied that there is no good reason in the present case to depart from the normal rule that the claimant must pay the defendant’s costs of discontinuing the claim. My reasons are as follows.
  2. First, there was in reality no change of circumstances so far as the merits of the basis of the claim for judicial review were concerned. The impact of the Covid-19 restrictions did not affect the central factual issue, namely whether the evidence supported the proposition that the claimant could not receive the medical treatment he required whilst detained at HMP The Mount. The evidence on that issue was all one way. The witness statement of Michael Coates made it clear that should the situation arise, on the medical evidence, that the claimant required treatment via a PICC line, the necessary arrangements would be made for him to receive that treatment. His evidence was uncontradicted. A firm assurance was given in the detailed grounds of defence (see paragraph 26 above) that should treatment via a PICC line become necessary requiring transfer to another part of the prison estate, an appropriate decision would then be taken.
  3. Second, for the reasons I have already explained, the claim was predicated on a misinterpretation of the state of the medical evidence in October 2019; there never had been medical opinion expressed that the claimant presently required a PICC line which necessitated his transfer to open prison conditions. That may well have been the long term goal, but he was receiving appropriate oral medication. That continued to be the position as the updated medical records eventually demonstrated.
  4. Third, for the reasons I have already explained in refusing to set aside the notice of discontinuance, the reality was that the claim was bound to fail had it proceeded to a hearing on 30 April. This must have been recognised by the claimant’s legal team. In the claimant’s solicitors’ letter of 22 April (quoted at paragraph 45 above) the claimant was indicating a clear intention to revive the claim at a future date should the application to vacate be granted. That claim challenged the defendants’ continuing refusal to re-categorise and transfer him to open conditions as a breach of Articles 2 and 3 ECHR and a breach of their duties under the Equality Act 2010. It is not correct to suggest that those issues in the judicial review had become academic. That is precisely why the application to vacate was refused.
  5. Fourth, had the hearing proceeded on 30 April, and had it then become apparent that justice could not be done because (for example) the claimant’s solicitors had been unable to obtain the necessary medical evidence owing to the Covid-19 restrictions, it would have been open to the claimant at that stage to apply again (at the hearing) for an adjournment. Although the practical difficulty of a further medical examination was raised in some of the email exchanges before the application to vacate was determined, it is rightly conceded in the claimant’s written submissions (30 April), at paragraph 5, that “this perhaps could and should have been spelled out in more detail in the application to vacate”. As it was, the application to vacate was put principally on very different grounds.
  6. Fifth, to the extent that the Covid-19 pandemic did change the circumstances (which I do not accept), it was certainly not a change of circumstances brought about by any form of unreasonable conduct on the part of the defendants (as identified by Moore-Bick LJ in Brookes: see paragraph 121(iv) above). In this regard, the proposed amendment of the claim to embrace fresh decisions which might or might not be taken on Covid-related issues was, in reality, a distraction from the central issue in the judicial review. The amendments never materialised in any event.
  7. I appreciate and make full allowance for the difficulties faced by the claimant’s solicitors (not least as a charity) in seeking a practical outcome by pursuing ROTL instead, and the unfortunate (but probably inevitable) delay in their receiving the defendants’ definitive response on the options open to the claimant set out in the very full letter of 22 April. However, this does not in my view amount to any justification, still less a “cogent reason” for departing from the normal rule on costs. The judicial review claim itself was already unsustainable.
  8. Sixth, it cannot be said that this is a case where the claimant has obtained the outcome he set out to achieve in his claim for judicial review, thereby making the continuation of the proceedings academic. The purpose of expressing my view on the overall merits of the claim, as in Davis, is to ensure that the same or substantially the same claim will not be revived unless there is some very good reason for the court to exercise its discretion under CPR r.38.7 to permit such a claim.
  9. Accordingly, for all these reasons the normal rule will apply, and the claimant will pay the defendants’ costs of the claim up to and including the date on which notice of discontinuance was served, namely Monday 27 April 2020.
  10. Because the claimant is legally aided, and in view of his current circumstances, it is unlikely the defendants will actually receive those costs. I will make the usual order, namely that the order for costs shall not be enforced save following and in accordance with a determination by a costs judge of the amount which it is reasonable for the claimant to pay, in accordance with section 26 (1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.